Trial That Could Restrict Patient Access to Medical Cannabis Suspended Once Again

By Manuela Borges

A group of mothers and fathers from various states across the country occupied the lawn of the Superior Court of Justice (STJ) in protest against the trial that could restrict patient access to a range of procedures, exams, and medications, including medical cannabis, currently funded by health plans through legal actions. 

Chained to one another, the protesters shouted, "the exhaustive list kills." Currently, the interpretation is that the list of procedures defined by the National Health Agency (ANS) is merely illustrative, which allows for judicial actions in favor of patients. The current concept - being an illustrative and not exhaustive list - opens loopholes for health plans to be required to cover procedures not listed by ANS through legal actions. 

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On the opposite side, health plans are demanding a change in this interpretation from the STJ. Health operators want the procedures to be restricted to what is expressly determined in the ANS list, preventing judicial challenges. Currently, the ANS list provides for about 3,300 covered procedures. However, over the past 20 years, the prevailing understanding in the courts is that the list of procedures serves only as a minimum reference for coverage. A reflection of this is the number of favorable actions for plan beneficiaries. Data from the National Justice Council shows that between 2015 and 2020, more than 2.5 million health-related lawsuits accumulated in the Brazilian judiciary.

The trial, which could reduce health plan coverage, began five months ago. At that time, the rapporteur, STJ Minister Luis Felipe Salomão, voted for the interpretation of the exhaustive list on the grounds that the model is already adopted in several countries and that ANS has the authority to define what should or should not be mandatory in the coverage of operators. The magistrate also advocated for rigor in defining procedures to protect beneficiaries from possible abusive increases. The minister also questioned the relevance of medical procedures and the assessment of financial impacts on the sector. However, on the other hand, the rapporteur recognized exceptional cases where it would be possible to require health operators to cover procedures not included in the list.

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The resumption of the trial began with the vote of Minister Nancy Andrighi. The magistrate diverged from the rapporteur's reasoning, voted against the exhaustiveness of the list imposed on health plans, and questioned the rapporteur: "If there will be exceptions, why leave it written that the list is exhaustive? If we say that the list is exhaustive, many interpretations will be incorrect. If there will be no harm to patients, there is no reason to change the wording," concluded Minister Andrighi. The issue that generated controversy among the magistrates was once again suspended. Minister Ricardo Villas Bôas Cueva requested a review of the process, culminating in a collective request for review. The trial has no date for resumption.

Outside, the protesters celebrated with relief, but not tranquility. Katiele Fisher, mother of Anny, who recently participated in a live on this portal and became famous for starring in the documentary "Illegal", - about access to medical cannabis and the taboo that still surrounds the topic - made a point to protest! "The exhaustive list harms thousands of lives! This trial will affect cancer patients, those who need surgery, more sophisticated exams, and also those who use cannabidiol. It is yet another battle these people will need to face. This is very concerning! Profit is worth much less than a life," laments the woman who opened the doors for the entry of medical cannabis in Brazil in 2014.

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Lawyer Samanta Mourão, who traveled 1,200 km from RJ to Brasília with a baby in her arms, is also very concerned about the outcome of the trial. "My son Rafael, 7 years old, has severe autism. Before cannabis, he was very aggressive, self-harming to the point of deforming his face. Today, he is much calmer, I can go out with him, he can socialize with other children, he is even being literate, able to sit, concentrate, and draw! Rafael's treatment costs 3 thousand reais a month. If the plan does not pay for the medication, we have no way to continue. What I fear most is that he will hurt himself again," reports the anguished mother.

For lawyer Ricardo Piquet, a specialist in the judicialization of medical actions, if the thesis of the exhaustive list is accepted, it will indeed make access to treatments more difficult, but it will not prevent it. After all, according to him, the thesis being drawn among the magistrates in the 2nd Section of the STJ is of an exhaustive list with exceptions. "The magistrate must continue to analyze the concrete case to judge based on the reasoning of each action. I believe that if the court interprets it this way, the injunctions will continue to be granted in favor of patients," reassures the specialist.